[2023] KECA 776 (KLR)

Temo & 3 others v Abdalla & another (Civil Application E012 of 2021) [2023] KECA 776 (KLR) (23 June 2023) (Ruling)

Neutral citation: [2023] KECA 776 (KLR)

Republic of Kenya

In the Court of Appeal at Mombasa

Civil Application E012 of 2021

SG Kairu, P Nyamweya & GV Odunga, JJA

June 23, 2023

Between

Bahati Temo

1st Applicant

William Mjape

2nd Applicant

Kesi Mjape

3rd Applicant

Robert Lugo

4th Applicant

and

Swafiya Abdalla

1st Respondent

Fatuma Swaleh

2nd Respondent

(Being an application to strike out Civil Appeal (Application) No. 85 of 2019 from an appeal against the ruling and order of Hon Justice C. Yano delivered on the 11th day of April 2018inMombasa ELC Case No 155 of 1993 Environment & Land Case 155 of 1993 )

Ruling

1. Before us is an unusual application. It is a Notice of Motion dated 17th February, 2021 and it is expressed to be brought under Sections 1A & 1B of the Appellate Jurisdiction Act, Rules 55 & 84 of the Court of Appeal Rules.

2. By the said Motion the Applicants seek that the Notice of Motion dated 11th January, 2021 in Civil Appeal No. 85 of 2019 be struck out. The main ground for seeking this order is that the Respondents have filed an application seeking to strike out Civil Appeal No. 85 of 2019. According to the Applicants, following the order issued in Civil Application No. 5 of 2019 on 28th May, 2019 by which the Applicants were granted leave to file and serve their Notice and Record of Appeal out of time, the Applicants filed their Notice of Appeal on 7th June, 2019 and their Record of Appeal on 27th June, 2019. Though the Respondents filed a reference against the said decision vide a letter dated 28th May, 2019, the filing fees was not paid until 11th June, 2019, 13 days after the date of the decision against which the reference was made. By then the Notice of Appeal had already been filed.

3. According to the Applicants the reference was effective from the date of payment of the court fees.

4. It was the Applicants’ position that the application by the Respondents seeking to have the said Notice of Appeal struck out is time barred under Rule 84 of the Court of Appeal Rules, after the expiry of 30 days from the date of service of the Notice or Record of Appeal, having been filed 1 year and 8 months. It was further disclosed that pursuant to the directions issued in the said appeal, the Applicants who are the Appellants in the said appeal have filed their submissions.

5. In their response the Respondents relied on the replying affidavit sworn by Swafiya Abdalla, the 1st Respondent herein in which she explained the circumstances under which the payment for the reference was made. Since this is not the reference, we do not find that explanation relevant for the purposes of this ruling. It was however disclosed that the Respondents had sought extension of time so that the reference to Court may be heard together with the application for striking out both the Notice and Record of Appeal.

6. We heard the application vide the Court’s virtual platform on 27th February, 2023 during which Learned Counsel Mr Tamini Lewa appeared for the Applicants while Mr S. M. Kimani appeared for the Respondent. Both counsel relied on their written submissions which they highlighted before us.

7. While Mr Lewa relied entirely on his filed submissions which substantially reiterated the facts deposed to in the supporting affidavit, Mr Kimani submitted that this application was unnecessary in so far as it seeks to strike out an application instead of opposing the said application in the usual manner. Learned Counsel then distinguished the terms “lodge” and “write”.

8. We have considered the submissions of Learned Counsel.Although Counsel addressed us on other issues, in our view the determination of this application depends on the propriety of making the application. It is clear that the Application was made in reaction to the Application dated 11th January, 2021 seeking to have Civil Appeal No. 85 of 2019 struck out. Rule 52 of the Court of Appeal Rules, 2022 provides that:A person who has been served with a notice of motion under rule 51 may—(a)lodge one or more affidavits in reply and shall serve a copy or copies thereof on the applicant within fourteen days after receipt of the application, unless otherwise directed; and(b)with the leave of a judge or with the consent of the applicant, lodge one or more supplementary affidavits.

9. That is the prescribed mode of responding to an application. There is no provision under the Rules for making an application to strike out an application. As was held by this Court in the oft-cited case of Speaker of the National Assembly v Karume [1990-1994] EA 549:“…there is considerable merit in the submission that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

10. Kiage, JA in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR expressed himself as hereunder:“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.”

11. It is therefore our view and we hold that this Motion ought not to have been made. It amounts to an abuse of the court process for a party to seek to respond to an application by way of another application.

12. In the premises we dismiss the Motion dated 17th February, 2021 with costs to the Respondents.

13. It is so ordered.

DATED AND DELIVERED AT MOMBASA THIS 23RD DAY OF JUNE 2023S. GATEMBU KAIRU, FCIArb......................................JUDGE OF APPEALP. NYAMWEYA.....................................JUDGE OF APPEALG.V. ODUNGA.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR